Art Prints and the Uniform Commercial Code
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Indiana Law Journal Volume 72 Issue 2 Article 15 Spring 1997 Unique or Ubiquitous: Art Prints and the Uniform Commercial Code Wendy C. Lowengrub Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Commercial Law Commons, and the Entertainment, Arts, and Sports Law Commons Recommended Citation Lowengrub, Wendy C. (1997) "Unique or Ubiquitous: Art Prints and the Uniform Commercial Code," Indiana Law Journal: Vol. 72 : Iss. 2 , Article 15. Available at: https://www.repository.law.indiana.edu/ilj/vol72/iss2/15 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Unique or Ubiquitous: Art Prints and the Uniform Commercial Code WENDY C. LOWENGRUB* Law, in its search for truth and justice through precedence and tradition, often ignores the fundamental meaning of an act or an object. The fine art print is one such example. A recent case in the Southern District of New York held that art prints are unique: "two prints by the same artist and from the same plate are not interchangeable."' The court refused to allow the seller of a Picasso print to cure under the Uniform Commercial Code ("U.C.C.") section 2-5082 by offering a substitute print from the same plate, printed at the same time, and signed by Picasso to the buyer who claimed breach of contract because of a forged signature on the initial print.' Presumably, the New York court was dazzled by the cost of the print ($1.68 million) and by the argument that printing plates wear significantly during printing. Contract law's historic acceptance that a work of art is unique for purposes of specific performance also contributed to the court's holding. This doctrine does not accurately reflect what an art print truly is. An art print, printed from the same plate, by the same artist, and in the same edition, is not unique. The New York court's holding perpetuates popular misunderstandings about art prints. Uninformed consumers, believing that art prints are unique and limited, have paid hundreds of thousands of dollars for art prints which could be purchased at a poster store for twenty-five dollars.4 Nor should the law refuse to enforce contracts and punish unscrupulous buyers of prints because of the mistaken belief that an art print is a unique work of art. Litigation based on art related issues is rising. Large fluctuations in the art market and insurance claims from destroyed or damaged art collections have led increasing numbers of parties to seek redress in court.' By steadfastly maintaining that art prints are unique under the law, courts and lawyers distort the print market by advancing a proposition that is often inaccurate and a disservice to art dealers and consumers alike. It is not the intention of the author to diminish the artistic value of prints. Art prints can be wonderful, exciting, and fascinating. Contemporary artists are pushing the boundaries of printmaking and producing extraordinary work. Prints * J.D. Candidate, Indiana University School of Law-Bloomington, 1997; B.A. Brandeis University, 1990. 1 would like to thank Professor Douglas Boshkoff for this topic and for invaluable advice on the earlier drafts of this Note. I also would like to thank my parents for their unending support. 1. David Tunick, Inc. v. Komfeld, 838 F. Supp. 848, 851 (S.D.N.Y. 1993). 2. U.C.C. § 2-508(2) (1994). This Note will refer to the U.C.C. instead of the New York code because New York has adopted the same language as the original U.C.C. for the pertinent sections. 3. Tunick 838 F. Supp. at 851. 4. See Susan Cohen, The Art of the Bogus, WASH. POST, July 18, 1993, § 10 (Magazine), at 18. 5. See Victor Wiener, Volatile Art World Increases Pressure on Appraiser's Job: LitigationMore Likely in Current Market, N.Y. L.J., Mar. 21, 1994, at S2. INDIANA LA W JOURNTAL [Vol. 72:595 made by Edvard Munch, the Norwegian artist popular for The Scream, are considered by many to be at least as artistically successful, if not more so, than his paintings.6 Le Minotauromachie, the Picasso print which sold for $1.68 million, is regarded as significant a work of art as his Guernicapainting. 7 There are approximately thirteen known signed prints of Le Minotauromachie.'Each one is significant, but not different except, perhaps, for a disparity in the condition of the print. The purpose of this Note is to argue for a change in how the law views art prints. Contemporary art prints within an edition should not be considered unique for purposes of contract law and the U.C.C. In adopting this contention, it is important to understand what a print is before determining questions of law. The first part of this Note analyzes David Tunick, Inc. v. Kornfeld in terms of how its holding relates to the nature of art prints. Part II reviews Tunick's discussion of cure and specific performance and provides a framework as to how these doctrines should apply to art prints. Part III examines the laws enacted in various states regulating the sale of prints, and how the development of these laws should be reflected by courts in deciding breach of contract cases pertaining to art prints. Finally, Part IV proposes a simple standard under which courts and lawyers can make informed decisions about cases involving art prints. I. DAVID TUNICK, INC. V. KORNFELD In David Tunick, Inc. v. Kornfeld, the Southern District Court of New York held that an art print "by the same artist and from the same plates" cannot be used to cure a nonconforming tender of an art print.9 In this case of first impression, the defendants, Mr. Eberhard Kornfeld and Galerie Kornfeld und Cie, sold a Picasso print entitled Le Minotauromachie'"to the plaintiff, David Tunick, Inc." The plaintiff believed that the signature on the print was forged, and sought to 6. See DAVID LOSHAK, MUNCH 9 (1990). 7. RIVA CASTLEMAN, PRINTS OF THE 20TH CENTURY 110 (1988). 8. ALFRED M. FISCHER, PICASSO: DRUCKGRAPHISCHE WERKE DIE SAMMLUNG LUDWIG 27 (1993). 9. 838 F. Supp. 848, 851 (S.D.N.Y. 1993). 10. Le Minotauromachie is Picasso's most significant and important print. CASTLEMAN, supra note 7, at 108. One commentator describes the print in the following manner: [T]he Minotaur is confronted by [a] child who.., holds a candle to blind... the manbeast. They are separated by the cruel spectacle of a woman bullfighter tossed by a disemboweled horse. [On the left side of the print] is a man escaping up a ladder, while, above, the scene is viewed by two women at a window ledge upon which two doves are strutting. In the far distance there is a boat-the escaping Theseus of the original tale of the Minotaur perhaps. Id. at 108-10. Le Minotauromachiewas etched on to a copper plate, and printed by the renowned Parisian printshop, Atelier Lacouriere. Id. at 110-11. 11. Tunick, 838 F. Supp. at 849. 19971 ART PRINTS AND THE U.C.C. return the print. 2 The defendant offered a signed replacement print of Le Minotauromachie which the plaintiff refused to accept.' 3 The plaintiff subsequently filed suit alleging breach of warranties, fraud, reckless misrepresentation, breach of the duty of honesty and fair dealing, and breach of fiduciary duty. 4 The defendant denied the allegations and filed counterclaims for breach of contract, unjust enrichment, and fraud. 5 The defendant argued that the offer of the replacement print satisfied its right as the seller to substitute conforming goods for the alleged non-conforming tender (the forged print) under section 2-508 of the U.C.C. as enacted by the State of New York. 6 According to the defendant, the plaintiff could not reject the substitute print and seek alternative remedies.'7 The court disagreed and ruled that art prints are unique goods which are not interchangeable.18 The court based its decision on U.C.C. sections 2-508 and 2-716. " Section 2- 508 provides for cure by the seller of goods where the buyer revokes her acceptance of the goods.2" The seller may cure a transaction by substituting a conforming tender where the "seller had reasonable grounds to believe [the original tendered good] would be acceptable."'" The seller also may get additional time to "substitute a conforming tender" if she "seasonably notifies the buyer" of the decision to cure.22 In this case, the defendant attempted to cure the transaction by offering the replacement print in a timely fashion.23 As stated earlier, the replacement print was from the same plate as the original print and 12. Id. David Tunick, aNew York print dealer, purchased the print for $1.68 million at an auction from the defendant. Sixteen months later, the plaintiff determined the signature was a forgery and sought to return the print. Wiener, supra note 5. 13. Tunick, 838 F. Supp. at 850. There are only 13 signed prints of Le Minotauromachie still in existence. FiScHER, supra note 8, at 27-28. It is believed that only 50 impressions were made from the initial plate although Picasso claimed in his lifetime that only 30 prints were made. Id. There are 39 unsigned prints most of which are in the possession of the Picasso estate.